At times some basic question of law arises in a legal proceeding, which makes everyone involved take note of it and think. The answer to such questions looks very obvious but on a deeper analysis the answer may not be as easy as it seems.

In a recent proceeding in the Hon'ble High Court of Delhi a similar question crept up where a person, who was the husband of the original complainant, filed a revision petition before the Sessions Court in the name of his dead wife as a power of attorney holder of his late wife. The Hon'ble High Court of Delhi had to adjudicate whether such a proceeding was maintainable in the eyes of law or not and orders passed therein have any legal validity or not.

Facts:
The person who had signed the revision petition before the Sessions Court had two authorities/ jural relationship with the original complainant, who was dead. Firstly, the person who signed the petition was a power of attorney holder from original complainant. Secondly, the person who signed the petition was the husband of the original complainant so he was a legal heir as the original complainant was dead when the revision petition was filed before the Sessions Court.

But, what was important that the petition was filed in the name of dead original complainant and not by the husband in his own name as her legal heir. So, admittedly, the petition was filed in the name of a dead person. The question arose before the Hon'ble Court is whether a petition filed in the name of dead person by the power of attorney of the said person is maintainable in law.

Law:
There is no doubt that criminal law provides for continuance of legal proceeding by legal heirs in specific circumstances after the death of the original party. The Apex Court in the case of Chand Devi Daga Vs Manju K. Humatani [(2018) 1 SCC 71] held that taking assistance of Section 302 of CrPC the legal heirs can continue the prosecution upon death of original complainant. This position of law has been followed by various other Courts and by the Hon'ble Supreme Court of India is several of its subsequent judgments. Section 339 of The Bhartiya Nagrik Suraksha Sanhita, 2024 is pari materia to Section 302 CrPC. The Order XXII of Code of Civil Procedure, 1908 also provides for continuance of legal proceedings by legal heirs in civil cases.

The However, in order to do the same, it is important to follow the procedure and establish before the Hon'ble Court that the 'right to sue' survives even after the death of the original party and the person seeking to continue the proceeding has the right to do so. In the present case under reference, the person who filed the petition did not take any step in this regard as the petition was not filed as a legal heir of the dead original complainant.

It is important to note that, Apex Court in the matter of 'Maulvi Issa Qureshi Vs District Judge, Deoria & others' [1996(6)SCALE487] observed that 'From the narration of the facts, it is clear that when the suit had come to be filed on behalf of a dead person professing to be alive and co-plaintiff was impleaded in the suit, it would be obvious that the co-plaintiff played fraud upon the Court and misused judicial process'.

Next point is the legal impact of the power of attorney held by the person filing the petition. It is established principle of law that a power of attorney comes to an end as soon as the executor of the power of attorney dies except in specific circumstances like exchange of consideration at the time of power of attorney as provided under Section 202 of the Contract Act, 1872. A power of attorney for contesting a legal proceeding does not continue of hold its effect after the death of the executor as it does create an interest of the power of holder on the case.

Hence, filing of a legal proceeding by a power of attorney in the name of the executor of the power of attorney, who is dead at the time of filing of the petition is bad in law. Therefore, in the present case under reference, which was filed by the power of attorney of the dead complainant in the name of the dead of complainant is bad in law.

Conclusion:
In the above back ground, the Hon'ble High Court of Delhi held [vide its judgment dated September 27, 2024 in CRL.M.C. 6337of 2019] that the petition filed by the husband of the original complainant in the name of the original complainant as her power of attorney were 'non est' in the eyes of law and ought not to have been entertained by any court. Therefore, all other orders passed in the such 'non est' proceeding are not sustainable in law as under: -

"…10. It is undisputed that the complaint can be instituted, in some circumstances, through the Power of Attorney, however, undisputedly, a dead person cannot initiate the proceedings. Moreover, once the person has already expired, the Power of Attorney also expires along with the person. The same, in some cases, can be considered as valid and operative, especially, when it relates to transfer of title. However, in regard to institution of the case, the Power of Attorney holder does not hold any right to continue with the proceedings after the death of the donor. This right is only available to the legal heirs.

11. Admittedly, the revision petition was not filed by the husband of the complainant as a legal representative but only claiming as a Power of Attorney of the complainant who, admittedly, at that point of time, had already expired…"

"….15. Concededly, the complainant Rita Gulati expired on 14.03.2015 whereas the revision petition was filed in the year 2016.

16. The revision petition has admittedly been filed by Respondent No. 1 claiming to be the Power of Attorney holder of Rita Gulati. It is settled law that the power of attorney extinguishes with the death of the principal unless the agent has interest in the subject matter of the agency.

17. Consequently, the revision petition was wrongly filed. The proceedings in the name of Rita Gulati were non est and ought not to have been entertained. The impugned order was therefore passed in non est proceedings and cannot sustain…."

This way the answer of the simple question required a detailed analysis of the law position to get to the answer, which otherwise logically look so obvious.